COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges 

VIRGINIA DEPARTMENT OF HEALTH/ 

 COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION*

v. Record No. 2096-02-2 PER CURIAM 

 DECEMBER 31, 2002 

SUSAN ANN ELMORE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Jerry W. Kilgore, Attorney General; Judith 

Williams Jagdmann, Deputy Attorney General; 

Edward M. Macon, Senior Assistant Attorney 

General; Scott John Fitzgerald, Assistant 

Attorney General, on brief), for appellant. 

 (B. Mayes Marks, Jr.; Marks and Williams, 

P.C., on brief), for appellee. 

 Virginia Department of Health/Commonwealth of Virginia 

(employer) contends the Workers' Compensation Commission erred 

in finding that Susan Ann Elmore proved that (1) her hyperacusis 

and tinnitus were causally related to her compensable April 13, 

1999 injury by accident; and (2) the two-year statute of 

limitations contained in Code § 65.2-601 did not bar her claim. 

Upon reviewing the record and the parties' briefs, we conclude 

that this appeal is without merit. Accordingly, we summarily 

affirm the commission's decision. Rule 5A:27. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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I. Causation

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The 

actual determination of causation is a factual finding that will 

not be disturbed on appeal if there is credible evidence to 

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 

684, 688, 376 S.E.2d 814, 817 (1989). 

 In ruling that claimant proved that her hyperacusis and 

tinnitus were causally related to her compensable April 13, 1999 

injury by accident, the commission found as follows: 

[W]e find nothing in the previous medical 

reports to substantiate that the claimant 

suffered from this condition prior to that 

date. While [Lorraine Klein] Gardner's 

audiology report indicated that the claimant 

had a several year history of increase in 

problems, this is not determinative in the 

absence of other medical documentation. In 

addition, we note that this evaluation took 

place in May and June of 2000, more than a 

year after the accident. Therefore, such a 

history does not negate the claimant's 

contention that the condition began with, or 

certainly worsened after, the April 13, 

1999, accident. Drs. [Nathan] Zasler, 

[Richard L.] Prass, and [Howard N.] Gutnick 

have made a causal connection between the 

claimant's tinnitus, hyperacusis problems, 

and the original accident. The record 

offers no evidence from any healthcare 

provider who has examined the claimant to 

indicate otherwise. 

 "Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 
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Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 215 (1991). In its role as fact finder, the 

commission was entitled to weigh the medical evidence. The 

commission did so and discounted Gardner's notation that 

claimant had a several year history of increasing problems, and 

accepted the uncontradicted opinions of Drs. Zasler, Prass, and 

Gutnick. Their opinions constitute credible evidence to support 

the commission's decision. Accordingly, we will not disturb 

that decision on appeal. 

II. Statute of Limitations

 To perfect a claim for benefits under 

the [Virginia Workers' Compensation Act], an 

employee must file notice of the claim with 

the commission within two years of the 

accident. This notice must include all 

specific injuries an employee contends are 

compensable. "Timely filing of an original 

claim is jurisdictional, and a claimant 

bears the burden of proving his claim is 

timely filed." 

Johnson v. Paul Johnson Plastering and Nat'l Sur. Corp., 37 

Va. App. 716, 723, 561 S.E.2d 40, 43 (2002) (citations omitted). 

"The purpose of filing with the commission is to provide all 

parties with notice of the potential issues in a case." Id. at 

723, 561 S.E.2d at 44. 

 The intent and purpose of Code 

§ 65.2-601 is to require notice to the 

employer of its potential liability for an 

injury sustained by an employee. Formal 

pleadings are not required. So long as the 

claimant's notice advises the commission of 

necessary elements of this claim, "'it 

activates the right of the employee to 
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compensation and . . . invokes the 

jurisdiction of the Industrial Commission.'" 

Metro Machine Corp. v. Sowers, 33 Va. App. 197, 204, 532 S.E.2d 

341, 345 (2000) (citations omitted). 

 Claimant's initial Claim for Benefits filed with the 

commission on July 9, 1999 listed the following injuries: 

"twitches (muscle); muscle spasms; head & neck pain; hip pain; 

speech difficulties." That claim also listed "speech apraxia; 

occipital neuritis ongoing; fibromyalgia" as the "nature or name 

of disease." 

 On March 9, 2001, claimant and employer executed an order 

setting forth their agreements. That order indicated that the 

parties agreed that "claimant suffered multiple injuries" in the 

April 13, 1999 accident. Deputy Commissioner Mercer entered the 

order on March 9, 2001. 

 The medical records established that as early as May 2000, 

Gardner, an audiologist, to whom claimant had been referred by 

Dr. Zasler, claimant's treating physician, indicated that she 

was seeing claimant for an evaluation "to investigate a 

diagnosis of hyperacusis." A copy of that report was sent to 

Managed Care Innovations, who was working with claimant on 

behalf of employer. 

 In a June 29, 2000 medical report from Dr. Zasler to Paula 

Day, the case manager assigned to claimant's claim by Managed 

Care Innovations, Dr. Zasler indicated that "it is my 
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opinion . . . that Ms. Elmore's audiologic complaints are, 

indeed, accident-related and therefore, any care germane to this 

complaint should be covered by worker's compensation." 

 Upon Gardner's suggestion, claimant was referred to 

Drs. Prass and Gutnick of Atlantic Coast Ear Specialists for a 

full evaluation for hyperacusis. Drs. Zasler, Prass, and 

Gutnick continued to communicate with Day and/or other 

representatives of Managed Care Innovations. In a September 22, 

2000 medical report, Dr. Prass indicated that the claimant was 

suffering from "bilateral hyperacusis and tinnitus, the onset 

which is temporally related to trauma of April 13, 1999." That 

report was sent to Day at Managed Care Innovations. 

 In a November 9, 2000 letter from Dr. Gutnick to Kristie 

McClaren of Managed Care Innovations, Dr. Gutnick enclosed 

reports regarding claimant's evaluation for hyperacusis and 

tinnitus. Dr. Gutnick recommended that claimant be fitted with 

ear devices to treat her hyperacusis and tinnitus, and he sought 

authorization from Managed Care Innovations to obtain these 

specialized devices. 

 Credible evidence in this record demonstrates that 

employer, through its representatives, had notice and actual 

knowledge of claimant's potential claim for hyperacusis and 

tinnitus and their causal relationship to her compensable work 

injury, well within the two-year period following her April 13, 

1999 injury by accident. Employer agreed within that two-year 
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period that claimant sustained "multiple injuries" as a result 

of the compensable April 13, 1999 work-related accident. 

Employer chose not to specify each and every injury in the March 

9, 2001 agreed order. Thus, because employer agreed that 

claimant sustained multiple injuries within the two-year period 

following her compensable injury by accident and employer had 

knowledge and notice of claimant's potential claim for 

work-related hyperacusis and tinnitus within that period, the 

commission did not err in invoking its jurisdiction and in 

considering claimant's claim for those conditions. 

 For these reasons, we affirm the commission's decision. 

Affirmed.